NC Lawyers Weekly features NC Employment Attorney Josh Van Kampen

EEOC filings are way down in N.C. and Employment law attorneys have theories why

Something curious is happening with the number of employment discrimination filings in North Carolina: They’re going down.

The number of people filing charges with the U.S. Equal Employment Opportunity Commission, alleging that they had been discriminated against by their employer, has dropped steadily each of the past four years. Just over 4,000 charges were filed in the 2014 fiscal year, a 23 percent drop since 2010. The drop was evident over all the types of discrimination claims tracked by the EEOC.

The statewide trend has not quite followed the picture nationally. EEOC charge filings were basically flat outside of North Carolina from 2010 to 2012, before dropping 11 percent in the last two years. North Carolina’s share of total U.S. charges has dropped from 5.2 percent to 4.5 percent over that four-year period.

Some employment law attorneys in North Carolina say that they don’t believe that the drop is a result of any actual decrease in workplace discrimination, however. They say they’re getting as many calls as ever from workers who claim they’ve been discriminated against on the job. They believe that the drop may have more to do with workers getting a skeptical, or even hostile, reception from EEOC employees in North Carolina, and that that could be discouraging workers from filing charges.

But one employers’ lawyer offered an alternative explanation. Mason Alexander, an employment law attorney who represents employers with Fisher & Phillips in Charlotte, said that charge filings went up during the early phase of the recession, as employees were laid off and feared that they may not be able to get other jobs.

“I think what’s happened is the economy has improved. There are more jobs out there than there were, and I suspect what is probably happening is we are moving back into a more normal situation like what existed before the surge due to rough economic events,” Alexander said. “Relatively speaking, we may be doing a little better here than some other areas.”

Attorneys frustrated

Judy Tseng, a Raleigh attorney whose practice includes employment law, said that a friend of hers went to the Raleigh EEOC office to file a charge of sex discrimination. The intake coordinator there, Tseng said, was very negative toward the claimant and gave the impression that the case was frivolous and a waste of time. The claimant was allegedly told she could fill out the forms and mail them in later.

“She did, but she’s an educated person, she’s a professional, and she had me in background egging her on,” Tseng said. “So if you have an intake person that gives off that kind of attitude that is so negative toward someone coming in, some people might not be so educated or be native English speakers, so they might be turned off from filing a complaint by a negative reception.”

Tseng said that determinations about whether or not a discrimination case is viable should be made only by EEOC investigators.

“Whoever’s doing the intake, they’re not lawyers and that’s not their job. They shouldn’t be saying no or telling people they don’t have a case, or giving off that impression,” Tseng said.

The intake coordinator instructed Lawyers Weekly to direct questions to Thomas Colclough, deputy district director for the Raleigh and Charlotte EEOC offices. Colclough did not respond to multiple voicemail messages requesting comment.

The effect that unemployment may have on the charge filing numbers is unclear since unemployment data paint a mixed picture. In early 2008, North Carolina’s unemployment rate was about even with the national rate. During the recession, North Carolina’s unemployment rate surged much higher than the national rate, running as much as two points higher for a period. Since then, the state’s unemployment rate has come down more quickly than the national rate, and the two figures are roughly in parity again.

National figures show a definite spike in charge filings at the start of the recession, but figures remained steady for several years even as the economy improved noticeably. In contrast, charge filings in North Carolina started to drop even as the overall employment situation remained dire. State and national charge filings figures also continued to diverge even after unemployment rates had harmonized.

Alexander said that media reports and perceptions about how the state economy is doing may have a bigger impact than actual statistics, however.

“People’s perception in the difficulty of finding a new job drives some of the changes in EEOC filings. The perception may be actually more improved than the reality,” Alexander said.

Employment law attorneys that represent employees were skeptical, however, that the drop in North Carolina was fueled by improving economic conditions. Josh Van Kampen, an attorney in Charlotte, said that plaintiffs’ attorneys there have been frustrated with the local EEOC office. When Van Kampen prepares a client for an interview with an EEOC investigator, he says he advises his clients that the investigator may very well be hostile to their case.

“To be fair, it’s an agency that’s lighter on resources than it should be, but for the most part they just don’t do much of any investigating,” Van Kampen said. “A typical charge investigation will start and stop with EEOC reading a letter that the company has responded with, and throwing its hands up in the air and deciding that it can’t determine if there has been any discrimination because the company says they didn’t discriminate. There are a handful of very skilled investigators who are very good, but that’s the exception to the rule.”

A systemic trend?

The EEOC has also announced a shift in its priorities in recent years. In 2013, the agency adopted a new “strategic enforcement plan” (SEP) that placed a greater emphasis on investigating claims of systemic discrimination, which are analogous to class-action lawsuits, and indicated an intention to de-emphasize charges of discrimination that are brought by individual employees. The SEP said that while investigating and litigating individual claims has been successful, the EEOC thinks a more targeted approach focusing on systemic enforcement would better deter violations.

The change in policy has significant implications for employers generally, but both employers’ and employees’ attorneys were skeptical that it could explain the drop in charge filings in North Carolina. A decision about whether to file a charge is typically made by the employee alleging discrimination, and few employees would be up-to-date on the latest nuances in EEOC policy. Also, the policy is a national one, and charge filings in North Carolina began to drop before the policy was announced.

It remains unclear, however, whether different local offices could be interpreting the policy differently, or whether certain offices might be intentionally or unintentionally discouraging workers from filing charges in cases that lack systemic implications.

Justine Lisser, a spokesperson for the EEOC in Washington, said the agency did not have the resources to make any determinations about why charge filings might be dropping in North Carolina.

“We have not done any studies or looked at empirical evidence to draw fact-based conclusions as to why charges ever go up or down or why they’re more in one state or another state,” Lisser said. “I wish we could, unfortunately, we just don’t have the staff.”

Lisser did say that one factor that would likely explain part of the five-percent drop in charge filings nationally from 2013 to 2014 is the fact that the federal government, including the EEOC, was shut down for three and a half weeks in 2014, during which time the agency was not processing charges in a normal fashion.

If workers are discouraged from filing a claim based on the reception they receive from the EEOC, it can have significant, even fatal implications for their case, said Vanessa Lucas, an employment law attorney with Edelstein & Payne in Raleigh. If workers want to sue their employer under federal law, they must file a charge with the EEOC within 180 days of the alleged discrimination. Since North Carolina is an at-will employment state, federal law may be the only recourse available to workers.

Lucas said that many workers may have no idea that they are required to file a claim with the EEOC before they can obtain a right-to-sue letter, or that they need to do so within 180 days. These less legally sophisticated clients, she says, are the ones that may be most at risk, but often don’t know the right thing to say to convince an EEOC investigator that they have a viable claim.

“Most of the people I’ve spoken to have been very unsophisticated, so it may be a matter of not being able to express the claim correctly, but that’s supposed to be something that the EEOC investigator can help with,” Lucas said. “For my clients, if they aren’t able to fill out a six-page form and have to actually have to talk to someone, those are the people that are being discouraged, in my experience.”

Van Kampen expressed concerns that if claimants perceive an unfriendly initial audience from the EEOC, they may be less likely to come back if they’re ever discriminated against in the future.

“The employers in town are not scared of the EEOC. They’re not scared the EEOC investigations, they’re not scared of EEOC litigation, and that’s a problem because the EEOC is not having the deterrent effect that it should,” Van Kampen said.